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The Law Library of Congress produces reports primarily for members of Congress. The legal research reports listed below by topic provide commentary and recommended resources on issues and events. These reports are provided for reference purposes only and do not constitute legal advice. The information provided reflects research undertaken as of the date of writing, which has not been updated unless specifically noted.
This page highlights the most recent reports. See the Comprehensive Index of Legal Reports for our complete list of reports.
Adoption, Custody, and Parentage
Provisions on Child Abduction in Non-Hague Countries
This report covers laws on parental child abduction and the legal aid that may be available to parents of abducted children in 38 countries that have not signed the Hague Convention on the Civil Aspects of International Child Abduction. While in many countries no specific legislation or programs dealing with international abduction of children could be located, existing laws and general legal aid programs may be relevant. (May 2015)
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Aeronautics and Space
Germany: Privatization of Air Traffic Control
The original wording of article 87d of the German Basic Law precluded privatization of air traffic administration. A first constitutional amendment in 1992 was interpreted to permit only corporatization. In order to allow functional privatization and implement the European Union Single European Sky framework, article 87d of the Basic Law was amended a second time in 2009. (May 2015)
Regulation of Drones
The increased use of drones for civilian applications has presented many countries with regulatory challenges. Such challenges include the need to ensure that drones are operated safely, without harming public and national security, and in a way that would protect areas of national, historical, or natural importance. A variety of the countries surveyed in this report have also made efforts to address concerns regarding the property and privacy rights of landowners or other persons impacted by the operation of drones. (April 2016)
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Family and Medical Leave Benefits Provided by the Military
Military personnel receive family and medical leave benefits as part of their service in Denmark, Israel, Norway, and Sweden. All countries provide leave following the birth or adoption or a child and caring for a sick child. Leave may be paid or unpaid. Israel distinguishes between permanent-service personnel and conscripts when awarding leave benefits. (June 2014)
Israel: Military Court Decision on Killing Neutralized Palestinian Assailant
On January 4, 2017, Israel’s Military Court convicted a sergeant in the Israel Defense Forces of manslaughter and of “unbecoming conduct” for shooting and killing an injured Palestinian assailant without justification and in violation of military rules of engagement. The Court ruled that the defendant’s act was not intended for the performance of a defined mission. Taking a person’s life after he has been subdued—even the life of a “terrorist,” as the assailant is referred to throughout the decision—is prohibited and violated military ethical rules, the Court said, and as such did not coincide with the behavior expected from a soldier at the rank of the defendant. (Jan. 2017)
Israel: Sentencing of Soldier Convicted of Killing Neutralized Palestinian Assailant
On February 21, 2017, the Military Court Central District sentenced an Israel Defense Forces sergeant to imprisonment for 18 months and ordered that he be demoted to the rank of private. The defendant was also sentenced to an additional 12 months of imprisonment if he commits another manslaughter offense within three years, as well as an additional six months’ imprisonment if he unlawfully uses a weapon within two years. (Mar. 2017)
Japan: Interpretations of Article 9 of the Constitution
One of the distinctive features of Japan’s current Constitution is its embrace of pacifism. In article 9 of the Constitution, Japan is allowed the Jieitai, Self-Defense Forces (SDF), but many have argued that the SDF is in fact a military organization and that its existence is unconstitutional. The government has interpreted article 9 of the Constitution to legalize and limit the SDF, and there has historically been limited support to amend article 9. However, global political and security issues impacting Japan have changed, as have the viewpoints of the Japanese people, and there now appear to be realistic opportunities to amend article 9. (Sept. 2015)
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Banking and Finance
Regulation of Bitcoin in Selected Jurisdictions
This report surveys forty foreign jurisdictions and the European Union, reporting on any regulations or statements from central banks or government offices on the handling of bitcoins as well as any significant use of bitcoins in business transactions. Topics covered include whether bitcoins are recognized as legal tender, the possibility of negative impacts on the national currency, concerns about fraud, and how transactions using the Bitcoin system are viewed by tax authorities. (Jan. 2014; updated June 2014)
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Constitutional Provisions on National and Religious Identity in Selected Countries
This report contains information on provisions in constitutions and other founding documents specifying an ethnic or religious identity for an Asian or European country. (Dec. 2014)
Egypt: Legal Framework for Arbitration
Arbitration is becoming an increasingly important means of settling investment and commercial disputes in Egypt. The country’s unrest over the past three years spurred the introduction of quicker and more flexible mechanisms for the settlement of investment disputes. Arbitration Law No. 27 of 1994 provides for the rules governing the formation and validity of arbitration agreements, arbitrability of legal disputes, composition of the arbitral tribunal, arbitral proceedings, and enforcement of an arbitral award. (Aug. 2014)
Immunity from Prosecution for Former Presidents
This chart reports on 32 jurisdictions with constitutional or statutory provisions addressing immunity of current and former presidents. Where a provision was located specifying whether presidents continue to have immunity after they leave office, such provision is noted. The chart also includes each country’s Freedom House aggregate score, a scale that comparatively assesses political rights and civil liberties in each country. (Oct. 2017)
Laws Lifting Sovereign Immunity
This report provides a review of laws adopted in Cuba, Iran, Libya, Russia, Sudan, and Syria on lifting the sovereign immunity of foreign states. Individual lawsuits against the United States brought before national and international courts by these countries are also analyzed. Except for Iran and Russia, the surveyed countries have no specific legislation addressing general principles of sovereign immunity. Iran uses domestic counterterrorism legislation to facilitate the freezing of financial assets of foreign governments. Syria uses such legislation to freeze the assets of individuals, including government officials, while Sudan uses it simply to prosecute foreign nationals. Cuba and Iran have adopted special laws targeting the US. (May 2016)
Malian Rules of Judicial Ethics: A Comparative Study
This report examines the legislation governing judicial conduct in Mali, as compared to equivalent legislation in Côte d’Ivoire, Senegal, Burkina Faso, and Benin. Each of these countries has a specific statute governing the condition of judges, but Mali stands out as being the only country with a code of judicial ethics. (Sept. 2014)
Parliamentary Procedures Requiring a Supermajority
This report identifies countries where a vote by a supermajority of legislators is required to change or initiate some parliamentary procedures. The report’s focus is mainly on the procedural requirements for deviation from standing orders and the termination of filibusters. Following a detailed review of procedural rules accepted by legislatures worldwide, the report includes foreign jurisdictions where legal acts defining parliamentary procedures require a qualified majority vote on a motion to proceed with debating a bill, or to close deliberations and move to voting. (Apr. 2017)
The Parot Doctrine and the European Court of Human Rights
In 2006, the Supreme Court of Spain adopted the “Parot Doctrine” in which it established that sentence reductions for prison benefits, including remission for work performed, were to apply to each sentence individually and not to the maximum term. The Parot Doctrine was recently challenged before the European Court of Human Rights and held to be in violation of the European Convention of Human Rights. (Mar. 2014)
Right to Peaceful Assembly
Freedom of peaceful assembly is a recognized right under international human rights law. This report provides a comparative review of one aspect of this right: whether advance notification or authorization is required for an assembly to take place under the law of France, Italy, Portugal, Spain, Sweden, the United Kingdom, and the United States. The report also reviews the relevant case law of the European Court of Human Rights. (Oct. 2014)
Sentencing guidelines in the common law countries of Australia, England and Wales, India, South Africa, and Uganda vary significantly. England and Wales have a Sentencing Council that develops offense-specific guidelines that the courts must follow, while Uganda’s Supreme Court has developed guidelines that are advisory only. In India and Australia, no formal guidelines exist and judges retain wide discretion in sentencing, but both countries have mechanisms in place to provide general guidance—in Australia through state legislation and in India through a series of court decisions that identify relevant sentencing factors. (Apr. 2014)
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Crime and Law Enforcement
Decriminalization of Domestic Violence
Russia decriminalized nonaggravated battery in July of 2016 and made it an administrative offense punishable by a fine or detention. However, repeated battery and battery committed against close relatives remained punishable under the Criminal Code. Russia amended the Criminal Code once again in February of 2017 and removed the provision regarding assaulting close relatives from the article on nonaggravated battery. As a result, violence committed against family members has also been made an administrative offense. Only repeated instances of battery are now prosecuted as criminal offenses and punishable by criminal law. International and nongovernmental organizations have noted that the failure to adequately protect victims of domestic violence may be incompatible with Russia’s international human rights obligations. (June 2017)
Decriminalization of Narcotics
This report provides a review of laws adopted in 16 countries with regard to legalization, decriminalization, or other forms of regulation of narcotics and other psychoactive substances. Individual country surveys included in this study demonstrate varied approaches to the problem of prosecuting drug use, possession, manufacturing, purchase, and sale. The country surveys demonstrate some diversity and common threads among these jurisdictions as to defining narcotics, distinguishing between “hard” and “soft” drugs, establishing special regulations concerning cannabis, refusing to prosecute personal use and/or possession of small quantities of drugs for personal use, giving law enforcement authorities the discretion not to prosecute minors and first-time offenders, applying alternative forms of punishment, and providing treatment opportunities. (July 2016)
Egypt: Former President Hosni Mubarak Trials
These reports discuss the charges against and trials involving former Egyptian President Hosni Mubarak and his family members. A report on the pending charges discusses the potential penalties for those charges and the applicable burden of proof. A status update is provided discussing the current status of the charges, investigations, and trials. (June 2011; June 2014)
Egypt: Mohammed Morsi Trial
On June 30, 2013, millions of Egyptians took to the streets to protest what they considered the failed policies of former president Mohammed Morsi and on July 3 the army removed the president from power to stand trial on criminal charges. This report provides a brief overview of the trial, which began on September 1, 2013. It discusses the alleged facts of the case, the charges Morsi faces, and sanctions that could be imposed on Morsi and his aides unders the Egyptian Penal Code if they are convicted. (Apr. 2014)
Egypt: Sexual Violence Against Women
Violence against women has been a significant social and legal problem in Egypt for decades. The two main legislative instruments protecting women from sexual violence are the Egyptian Constitution of 2014 and the Criminal Code of 1937 and its amendments. The Egyptian Constitution of 2014 not only preserved the rights granted to women by previous Egyptian Constitutions but also introduced more rights aimed at protecting women from other forms of violence and discrimination. (Oct. 2016)
Japan: 2016 Criminal Justice System Reform
Japan made reforms to its criminal justice system in June 2016 by amending its Criminal Procedure Code and other laws. The reform that received the most discussion by Japan’s Judicial System Committee was the introduction of the mandatory video recording of interrogations. Another reform that was introduced was bargaining between the defendant and the prosecutor. New crimes were also added to the list of those in which suspects’ communications may be intercepted. In addition, the scope of evidence that must be disclosed in trials was expanded, and new measures to protect witnesses and victims were introduced. (Nov. 2016)
Legal Status of Khat
This chart summarizes the legal status of khat (Catha edulis, also known as kat, qat, chat, and miraa), a plant whose leaves have a stimulant effect when chewed. It includes information regarding the legality of khat in each jurisdiction and, where it is banned, the applicable penalties. According to applicable tax laws or secondary sources, khat appears to be legal in Djibouti, Ethiopia, Kenya, Somalia, and Yemen, but is banned in Jordan. Its status in Turkey, where it is categorized as a controlled substance, is unclear. Whereas it is legal under Turkish law to produce, sell, import, and export khat with a license, it appears that consumption of the substance is banned. (May 2015)
Miranda Warning Equivalents Abroad
This report contains short summaries describing warnings similar to the Miranda warning that are required in 108 jurisdictions around the globe. The warnings specified in the surveyed jurisdictions vary, but typically include the right to remain silent and the right to legal counsel. A number of countries also specify that a person who is arrested or detained has the right to be informed of the reasons for the arrest or detention or of the charges being brought. In some countries, the additional right to have these things explained in a language the detainee understands is explicitly stated. Countries surveyed that have no Miranda-type warning were not included. (May 2016)
Police Weapons in Selected Jurisdictions
This report examines the weapons and equipment generally at the disposal of law enforcement officers in several countries around the world. It also provides, for each of these countries, a brief overview of the rules governing the use of weapons by law enforcement officers. Precise and reliable information on the weapons and equipment of some countries’ police forces was often difficult to find. (Sept. 2014)
Training Related to Combating Human Trafficking
This report describes the programs of 18 countries and the European Union involving combating human trafficking, with a special focus on the training of personnel. Each survey provides a brief introduction to the jurisdiction’s legal framework on human trafficking, describes the roles and responsibilities of particular government agencies in enforcing laws against human trafficking, and provides a description of training programs or initiatives that are conducted by and provided to government personnel. A majority of the surveyed countries have laws specifically targeting the problem of human trafficking and almost all the surveyed countries are parties to relevant international instruments addressing human trafficking. (February 2016)
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Education, Family, and Children's Rights
Constitutional Right to an Education
This report describes the law of twenty jurisdictions on the right to education, and whether the right appears in the national constitution or in statutory law. The jurisdictions selected for review have different constitutional arrangements and reflect diverse political, cultural, and economic experiences. All of the surveyed jurisdictions recognize the right to education. Fifteen of them provide for the right in their national constitutions, while five provide for the right through legislation. All reflect an interesting diversity in how the right to education is recognized in varied jurisdictions around the globe. (May 2016)
Laws on Children Residing with Parents in Prison
This report provides information on select international and regional measures and the laws of 97 jurisdictions from around the world that relate to allowing children to reside in prison with an incarcerated parent. Most of the countries surveyed impose specific age limits for a child’s admission into and length of stay in prison. Additionally, most of jurisdictions surveyed require that prisons that admit children meet certain standards. (July 2014)
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Elections and Campaign Finance
Lobbying Disclosure Laws
This report surveys laws governing registration of lobbyists in France, Germany, and the United Kingdom. A French law requiring registration will go into effect on July 1, 2017. The UK enacted a lobbying registration law in 2014 that requires lobbyists whose annual lobbying business reaches a certain threshold to disclose specified information. Germany does not have a mandatory register for lobbyists at the federal level, although it does have a voluntary register. (Mar. 2017)
Regulation of Campaign Finance and Free Advertising
This report discusses the regulation of campaign financing and spending in national elections and the availability of free airtime for campaign advertising in Austria, Canada, Finland, Israel, Japan, New Zealand, and the United Kingdom. Specifically, the individual country surveys address the extent to which each country applies limits on the amounts that can be contributed to political parties and candidates, the existence of ceilings on campaign expenditures, and the availability of free airtime for broadcast advertising. Countries included in this study demonstrate different models used in regulating campaign financing. (Mar. 2016)
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Government Powers and Litigation
Government Services Feedback Practices
This report surveys laws and practices regarding feedback on customer satisfaction from users of government services. The jurisdictions selected provide an array of representative approaches to obtaining feedback regarding user satisfaction. Some countries have enacted laws requiring agencies to obtain information on customer satisfaction and incorporate such data into quality improvement efforts. Many of the countries reviewed here have established programs for evaluating customer satisfaction of public services. Some countries have provided for large-scale, centralize surveying of customer satisfaction. (Oct. 2017)
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Bond Requirements in a Procurement Protest Procedure
This report contains information on 21 countries on the question of whether a bond, deposit, or fee is required in order to protest procedure in government procurement. The majority of countries included in this report require the payment of fees for an administrative review. These fees can be forfeited if the claim is found to be frivolous. (June 2014)
Switzerland: Implementation of Article 126 of the Swiss Constitution – The “Debt Brake”
Article 126 of the Swiss Constitution codifies a fiscal rule for the federal government called “debt brake,” which is designed to finance expenditures through revenues instead of new debt. It was first applied in the federal budget of 2003. Details of the debt brake are implemented in articles 13 to 18 of the Financial Budget Act. Compliance is monitored by the Swiss Federal Audit Office. (June 2016)
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Healthcare, Safety, and Bioethics
Abortion Legislation in Europe
This report summarizing laws on abortion in selected European countries shows diverse approaches to the regulation of abortion in Europe. A majority of the surveyed countries allow abortion upon the woman’s request in the early weeks of pregnancy, and allow abortion under specified circumstances in later periods. A comparative summary with maps is included. (Jan. 2015)
Approval of Medical Devices
This report describes the approval process for medical devices in the European Union and fifteen countries, and also indicates whether or not an expedited approval procedure is available. In many nations, particularly those influenced by the EU, part of the review process is conducted not by the government but by private, independent organizations called “notified bodies.” In most of the countries in the survey, medical devices are categorized based on the risks associated with their use, and the approval process varies by category. (Sept. 2014)
Child Restraint and Seatbelt Regulations
This report contains citations to the laws on seat belt use in Antigua and Barbuda, Australia, Bahamas, Brazil, Canada, China, Cyprus, Egypt, England and Wales, Fiji, Ghana, Indonesia, Kiribati, Malta, Nauru, Netherlands, New Zealand, Oman, Philippines, Singapore, South Africa, South Korea, Sri Lanka, Trinidad and Tobago, Turkey, and Vietnam, with information on provisions concerning children where available. (Apr. 2014)
Germany: Electronic Cigarettes
Electronic cigarettes in Germany are currently not subject to any age-related access restrictions. The Federal Administrative Court concluded recently that nicotine-containing liquids in electronic cigarettes are not medicinal products and therefore can be sold without approval in accordance with the Medicinal Products Act. It is still unclear whether such liquids are covered by tobacco regulations and antismoking laws. (July 2015)
Legal Responses to Health Emergencies
This report contains discussions of the regulations addressing health emergencies in 25 jurisdictions, including countries from six continents, the European Union, and the World Health Organization. All surveys included in this report review government structures tasked with delivering public health protection, relevant legislative frameworks for addressing health emergencies, and the powers of government institutions in times of health crises and their ability to mitigate the consequences of such crises. Analyses of the regulation of such issues as disease surveillance and notification systems are also provided. A comparative summary and a bibliography are included. (Feb 2015)
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Immigration, Nationality, and Citizenship
Family Reunification Laws
This report surveys 71 foreign countries, plus the United States and the European Union, on the issue of whether their laws permit legal immigrants to bring family members into the country for purposes of residence. For many of the jurisdictions covered, the information provided focuses exclusively on family reunification for permanent residents. However, for a number of jurisdictions, information is also provided on family reunification for citizens/nationals or temporary residents. A bibliography of selected international and comparative law sources is provided. (July 2014)
Fees Charged for Asylum Applications by States Parties to the 1951 Refugee Convention
This report surveys laws related to asylum granting procedures in 147 countries that are States Parties to the 1951 U.N. Convention Relating to the Status of Refugees and/or its 1967 Protocol. It identifies fees charged to applicants in connection with an application for asylum. According to the research findings, the vast majority of countries do not charge a fee for applying for asylum. In some instances, implementing legislation was located but no information regarding fees was found; for these countries the chart indicates “no fee located.” (Dec. 2017)
Germany: The Development of Migration and Citizenship Law in Postwar Germany
Postwar migration into Germany started in the 1950s with ethnic German resettlers who were fleeing discrimination or persecution in the former communist “Eastern bloc” on the one hand, and actively planned labor migration into Germany on the other. The rising number of asylum seekers and immigrants in the late 1980s made migration policy a focus of the federal elections in 1990. The 2005 Migration Act overhauled German migration policy and placed the focus on long-term residency for migrants, in particular for skilled workers, and on integration measures. The latest amendment to the migration framework, the Integration Act, entered into force in August 2016. (March 2017)
Laws Concerning Children of Undocumented Migrants
This report surveys the laws related to the treatment of undocumented migrants who arrived as minors, their eligibility for obtaining legal status and access to social benefits, and their possibilities for becoming citizens. Additionally, all country surveys provide a general overview of national migration legislation, and past amnesty programs are reviewed to illustrate national efforts in resolving problems involving the legalization of undocumented youth. A comparative summary and map is included. (Sept. 2017)
New Zealand: ‘Climate Change Refugee’ Case Overview
A New Zealand case involving an application for refugee status based on the effects of climate change in the Pacific Island nation of Kiribati has received media attention around the world. The proceedings in the case came to a close in July 2015, when the Supreme Court of New Zealand, the highest court in the country, dismissed an application for leave to appeal the Court of Appeal’s decision in which it ruled against the applicant. (July 2015)
Refugee Law and Policy
This report describes the law and policy on refugees and other asylum seekers in 22 geographically dispersed countries and, at the supranational level, in the European Union. The individual surveys cover such topics as participation in relevant international conventions; laws and regulations governing the admission of refugees and handling refugee claims; processes for handling refugees arriving at the border; procedures for evaluating whether an applicant is entitled to refugee status; the accommodations and assistance provided to refugees in the jurisdiction; requirements for naturalization; and whether asylum policy has been affected by international emergencies, such as the current refugee crisis in Europe. (Mar. 2016)
Right to Counsel for Detained Migrants
This report provides information on the laws of Australia, Canada, France, Germany, Israel, Sweden, and the United Kingdom regarding the right to counsel for detained migrants. All countries included in the study allow detained migrants to be assisted by a lawyer. In most of the countries, it is up to the migrant or asylum seeker to hire counsel; the government does not have an obligation to provide legal services to a person who entered the country without a valid visa or is subject to deportation. The United Kingdom appears to be the only country where legal counsel is provided by the government’s legal aid agency free of charge to all migrants in detention. (May 2017)
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Indigenous and Cultural Property
Preservation of Historical Cemeteries
This report provides an overview of laws, regulations, and court decisions governing the preservation of historic cemeteries in Brazil, China, Egypt, England, Eritrea, France, Germany, Greece, India, Israel, Italy, Japan, Lebanon, Mexico, New Zealand, Nicaragua, Russia, Spain, and the United States. The country surveys reveal a wide variety of legal and regulatory approaches to this issue and the involvement of an array of actors at various jurisdictional levels. (Apr. 2014)
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Mandatory Deposit Laws
This report contains data on 131 countries, indicating whether or not published books are subject to a mandatory deposit requirement at the national level and, if so, how many copies are required, where they must be deposited, and whether the deposit is part of the copyright system. Citations to the controlling legislation for mandatory deposits are provided. In all but 13 of the jurisdictions surveyed, deposits are required. For some of these thirteen jurisdictions, deposits are voluntary, while in others, no information regarding deposit practices could be found. Asterisks in the copyright system column indicate that the deposit requirement is contained in the copyright law. (Dec. 2017)
Patent Term Extensions and Adjustments
This report surveys the law on extensions and adjustments of patents in nine jurisdictions: Australia, Canada, the European Union, France, Germany, Israel, Japan, South Korea, and the United Kingdom. All of the surveyed jurisdictions provide for a standard patent term of twenty years, and all of them except Canada provide for extensions of protection for certain products that are subject to regulatory approval before they can be marketed. While Canada currently does not have legislation providing for extensions of patent protection, it is currently negotiating a trade agreement with the European Union that in draft form provides for patent term extensions of two to five years for qualifying pharmaceutical products. (Mar. 2016)
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Legal History, Traditions, and System
Egypt: Access to the Justice System and to Legal Aid
In Egypt, free access to the justice system and legal aid are constitutional rights. This concept can be found in various legislative instruments across the legislative spectrum, including the Criminal Procedures Code, Family Law, Child (Juvenile) Law, Human Trafficking Law, and Advocacy Law. The Supreme Court of Egypt, the Court of Cassation, affirmed this principle in its rulings. (Dec. 2017)
Features of Parliamentary Websites
In recent years, parliaments around the world have enhanced their websites in order to improve access to legislative information and other parliamentary resources. Innovative features allow constituents and researchers to locate and utilize detailed information on laws and lawmaking in various ways. These include tracking tools and alerts, apps, the use of open data technology, and different search functions. In some cases, information on more than one website is provided where separate sites have been established for different chambers of the national parliament. (July 2017)
This report describes the national Parliaments of Australia, Canada, China, Finland, France, Germany, India, Japan, Kenya, Mexico, Nigeria, Pakistan, South Korea, Sweden, and the United Kingdom. It traces the establishment of the current national parliamentary systems and locations of the these Parliaments. The report also discusses the elections of each Parliament’s members, the members’ terms of office, and the legislative process by which bills are introduced and passed into law. (Jan. 2016)
Parliamentary Oversight of the Executive Branch
This report provides information on parliamentary oversight mechanisms of the executive branch in Canada, Germany, Italy, Japan, Poland, Sweden, the United Kingdom, and the United States. The means by which the surveyed countries exercise parliamentary oversight of executive branch actions often include members’ inquiries, interpellations, and votes of no confidence against the respective governments. Specialized permanent or ad hoc parliamentary committees tasked with oversight of government actions in specific areas operate in all the countries surveyed. Both the United States and Canada have established special agencies dedicated to overseeing government activities. (Aug. 2017)
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Marriage, Divorce, and Estates
Inheritance Laws in the 19th and 20th Centuries
This report summarizes inheritance law in the 19th and 20th centuries in France, Germany, and the United States. French law of the period reflected the egalitarian system of inheritance brought about by the French Revolution, even after reforms instituted by the Napoleonic Code. Nineteenth-century German law was splintered into territorial regimes characterized by differentiated succession rules for the nobility versus the peasantry—a distinction that continued to some extent even after the unified German Civil Code became effective in 1900. Early inheritance law in the United States, premised on English law, was a matter of state law (as it is today) and thus varied, but during the period in question became much more egalitarian with regard to the inheritance rights of women. (Mar. 2015)
Israel: Extrajudicial Sanctions Against Husbands Noncompliant with Rabbinical Divorce Rulings
In a five-to-two decision, the Israeli Supreme Court rejected petitions by two Jewish husbands against rulings by rabbinical courts subjecting them to the application of twelfth-century social religious sanctions not expressly authorized under Israeli law. The sanctions were designed to pressure husbands to comply with divorce judgements issued against them by rabbinical courts. The Supreme Court accepted the petitions only with regard to one specific sanction that was held to conflict with current principles of Israeli law. (May 2017)
Israel: Spousal Agreements for Couples Not Belonging to Any Religion—A Civil Marriage Option?
Marriage and divorce in Israel are generally subject to the application of personal status laws of the parties involved. Jewish Israelis who do not qualify under Jewish law or who do not wish to undergo religious ceremonies are trying to find alternative ways to marry and divorce. The Law on Spousal Agreements for Persons Without a Religion partially addressed the problems of couples where both spouses do not belong to any recognized religion. It did not, however, resolve the problems shared by couples where one spouse does belong to such a religion. Whereas some perceive the law as a positive step in regulating marriage and divorce in Israel, others view it as a step back, creating more dependence on religious courts and further dividing Israel’s society not only along religious lines but even within religious groups. The law clearly does not provide a new civil law option to religiously recognized marriages. (Sept. 2015)
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Minority and Human Rights
Laws on Homosexuality in African Nations
This report summarizes the treatment of homosexuality in the criminal law of 49 African nations. Of the jurisdictions surveyed, only South Africa affirmatively permits same-sex marriage and only Nigeria and Uganda explicitly prohibit gay rights advocacy. (Feb. 2014)
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Plants, Animals, and the Environment
Crude Oil Royalty Rates
This chart lists royalty rates for crude oil production in selected countries where production occurs on lands owned or controlled in whole or part by the national government. The countries selected include leading oil-producing countries that impose royalties; countries that do not impose royalties are excluded. While there are other fiscal instruments used to raise revenue from oil production, this chart focuses solely on royalties. (Jan. 2015)
Laws on Leg-Hold Animal Traps Around the World
The chart below contains information on laws regulating or banning the use of leg-hold traps in 108 jurisdictions. In a number of jurisdictions the law generally regulates or bans all traps, or prohibits trapping in particular areas, without separately addressing the question of leg-hold traps. Countries with laws that merely provide in general terms that animals must be treated humanely have not been included. Some countries, such as India and Sri Lanka, have at times considered restrictions on traps but to date have not adopted them; such countries are not listed here. (Augt. 2016; Supplemental report Oct. 2016)
Restrictions on Genetically Modified Organisms
This report discusses the legislation of genetically modified organisms (GMOs) and genetically modified (GM) plants and foods in Argentina, Belgium, Brazil, Canada, China, Egypt, England and Wales, France, Germany, Israel, Italy, Japan, Lebanon, Mexico, the Netherlands, New Zealand, Norway, the Russian Federation, South Africa, South Korea, Sweden, and the United States. The European Union and International Protocols are also discussed. This report summarizes enacted laws on the cultivation and sale of GMOs, as well as public opinion on GM products. (Mar. 2014)
Sweden: Slaughter of Domestic Animals
In Sweden the slaughter of domestic animals must be done following sedation of the animal. This requirement was first adopted in 1937 by the Act on the Slaughter of Domestic Animals and entered into force in 1938. The suffering of the animal was referenced as the main concern and remains so today. Critics of the current law argue that it infringes on the religious freedoms of Swedish citizens, most notably Jews and Muslims. (May 2014)
United Kingdom: Measures to Implement MARPOL Convention Annex VI, Chapter 4
The UK is currently implementing Annex VI, Chapter 4, of the International Convention for the Prevention of Pollution from Ships (MARPOL Convention). The UK government has amended the Merchant Shipping Act and has met with industry stakeholders and EU representatives to explore ways to ensure compliance with the new regulations with minimal cost and regulation, secure EU financing to mitigate the significant investment costs for shipowners and ports, and guarantee fair and consistent enforcement of these regulations throughout the EU so that UK ports are not unfairly disadvantaged. (June 2014)
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Privacy Rights and Data Protection
Biometric Data Retention for Passport Applicants and Holders
This table compares the regulation of biometric data obtained in connection with passport applications and the preservation of such data in fifteen selected countries. (Mar. 2014)
European Union: ECJ Invalidates Data Retention Directive
In April 2014, the European Court of Justice (ECJ) declared the Data Retention Directive invalid. The Court held that the Directive entailed serious interference with the rights to privacy and personal data protection of individuals guaranteed by the Charter of Fundamental Rights, and also failed to establish limits on access by competent national authorities. Because the ECJ did not specify otherwise, the Directive is void and EU Members must comply with the ECJ’s judgment. (June 2014)
Foreign Intelligence Gathering Laws
This report contains information on laws regulating the collection of intelligence in the European Union, United Kingdom, France, Netherlands, Portugal, Romania, and Sweden. The report details how EU Members States control activities of their intelligence agencies and what restrictions are imposed on information collection. All EU Member States follow EU legislation on personal data protection, which is a part of the common European Union responsibility. A comparative summary is available. (Dec. 2014)
Foreign Intelligence Gathering Laws
This report offers a review of laws regulating the collection of intelligence in the European Union (EU) and Belgium, France, Germany, Netherlands, Portugal, Romania, Sweden, and the United Kingdom. This report updates a report on the same topic issued from 2014. Because issues of national security are under the jurisdiction of individual EU Member States and are regulated by domestic legislation, individual country surveys provide examples of how the European nations control activities of their intelligence agencies and what restrictions are imposed on information collection. All EU Member States follow EU legislation on personal data protection, which is a part of the common European Union responsibility. (June 2016)
Government Access to Encrypted Communications
This report describes the law of 12 nations and the European Union on whether the government, pursuant to a court order or other government process, can require companies to decrypt encrypted communications or provide the government with the means to do so. Some of the surveys provide additional information on related surveillance issues like the law on monitoring and intercepting communications. The report finds that while there is a range of approaches among the surveyed countries, a majority make provision for specified intelligence or law enforcement agencies to obtain access to encrypted communications or the means of decryption under certain circumstances. (May 2016)
Online Privacy Law
These reports describe the data protection laws of the European Union and of Australia, Canada, France, Germany, Israel, Italy, Japan, Netherlands, Portugal, Spain, Sweden, and the United Kingdom. They describe the legal framework for the collection, use, and transfer of data, and examine whether existing laws are adequate to deal with online privacy in an era of rapid technological development and globalization. (June 2012; EU report updated May 2014)
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Property and Land Rights
China: Real Property Law
Individuals cannot privately own land in China but may obtain transferrable land-use rights for a number of years for a fee. Currently, the maximum term for urban land-use rights granted for residential purposes is 70 years. In addition, individuals can privately own residential houses and apartments on the land (“home ownership”), although not the land on which the buildings are situated. Both urban land-use rights and home ownership are subject to registration. (Oct. 2014; updated Mar. 2015)
Israel: Law for the Regulation of Settlement in Judea and Samaria, 5777-2017
On February 6, 2017, the Knesset (Israel’s Parliament) passed a law for the regulation of land in Judea and Samaria (the West Bank). The law provides for registration of land ownership under the name of the government official in charge where ownership has not otherwise been established. Additionally, it provides for the expropriation of the rights of use and possession of privately-owned land in the region. Such expropriation will be in effect until a political resolution on the status of the region is achieved. (Feb. 2017)
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Religion and the Law
State Anti-conversion Laws in India
India’s Freedom of Religion Acts or “anti-conversion” laws are state-level statutes that have been enacted to regulate religious conversions. The laws are in force in six out of 29 states. While there are some variations between the state laws, they all seek to prevent any person from converting or attempting to convert, either directly or otherwise, any person through “forcible” or “fraudulent” means, or by “allurement” or “inducement.” Penalties for breaching the laws can range from monetary fines to imprisonment.
Laws Criminalizing Apostasy in Selected Jurisdictions
This report surveys the apostasy laws of twenty-three countries in Africa, the Middle East, South Asia, and Southeast Asia and primarily focuses on jurisdictions that make apostasy, or renouncing one’s religion, a capital offense. However, several countries that have adopted broadly-defined laws on blasphemy and insult to religion, which could potentially be used to prosecute persons for apostasy, have also been included, as well as one country that expressly prohibits extrajudicial punishment for allegations of apostasy. (May 2014)
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Taxation and Corporations
Disclosure of Beneficial Ownership
This report surveys the laws related to registration of beneficial owners and disclosure of information on corporate data in the European Union as a whole and in 29 countries. The individual country entries identify institutions authorized to collect information on beneficial owners, procedures for submitting and updating this information, existing exemptions from disclosure, and requirements for the government to verify the information provided. They also indicate who has access to the corporate data provided to the authorities and how companies can be held liable for nondisclosure, for providing false information, or otherwise violating relevant legal requirements. All individual country entries include a definition of “beneficial owner” or comparable terms as provided by national legislation. (July 2017)
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Travel Requirements, Visas, and Foreigners’ Rights
Legal Requirements for Travel by Unaccompanied Minors
This report provides a review of the domestic laws and procedures regulating the travel of children abroad in El Salvador, Guatemala, Honduras, and Mexico—countries of origin for the majority of unaccompanied children caught crossing the United States border in 2012–2014. The report concludes that the migration legislation of all of the countries surveyed requires parental authorization for all minors traveling outside of the country. The laws of Mexico and Guatemala make possession of a passport a mandatory requirement for travel, and Honduran law prohibits the travel of unaccompanied minors. (July 2014)
European Union: Status of Unaccompanied Children Arriving at the EU Borders
At the core of the Common European Asylum System established by the European Union (EU) is the right to asylum and the prohibition of refoulement. EU Members are required to handle requests submitted by unaccompanied minors in conformity with the principle of the best interests of the child. EU asylum law applies to unaccompanied children from the time they arrive at the EU borders, and minors are entitled to remain in the territory of the host state until a final decision is made on their status. The United Kingdom, Ireland, and Denmark have opted out of most of the EU asylum legislation. (Sept. 2014)
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Treaties and International Agreements
Trade Implications of Brexit: Lessons from Austria’s Accession and Greenland’s Withdrawal
The procedure for withdrawal from the European Union (EU) is governed by article 50 of the Treaty on European Union. Article 50 has never been used and presents uncharted political and legal territory. It is only applicable to the withdrawal of Member States. As there is no precedent for a Member State leaving the EU, negotiations surrounding the accession of new member states or the withdrawal of countries or territories that are associated with an EU Member State might provide some guidance. This report will look at the accession of Austria to the EU as an example of a General Agreement on Tariffs and Trade and World Trade Organization member joining the EU. As an example of a withdrawal, this report will examine the withdrawal of Greenland, an autonomous territory within the EU Member State Denmark, from the European Economic Community. (Apr. 2017)
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War Crimes, Terrorism, and National Security
Algeria, Morocco, Saudi Arabia: Response to Terrorism
Algeria, Morocco, and Saudi Arabia have adopted broad definitions of terrorism, raising concerns that they could include acts of political dissent. At various points they have also adopted criminal procedure provisions that lowered certain restrictions for investigations of crimes labeled as crimes of terrorism, made the financing of terrorism a separate offense, and required all suspicious financial transactions to be subject to scrutiny by special financial units before they are referred to the competent criminal authorities. In addition, Morocco and Saudi Arabia recognize that there is a religious component to the acts of terrorism committed by many terrorist organizations. They proclaim to have established special programs to seek to address this element of terrorism by means other than the criminal justice system. (Sept. 2015)
Genocide, Crimes Against Humanity, and War Crimes Jurisdiction
This chart reports on 149 jurisdictions that have laws punishing at least one of the three crimes, genocide, crimes against humanity, or war crimes. It indicates, where information was available, whether those laws cover only nationals, foreign persons when the offense is committed within the territory, or foreign persons when the offenses are committed outside of the country’s borders. In cases for which it is known that the laws have actually been applied, that information is included. (Nov. 2016)
Israel: Legal Aspects of Prisoner Exchanges
Israel has engaged in prisoner-swap deals numerous times throughout its history. The release of members of organizations it considers to be terrorist organizations and of those convicted of terrorism-related offenses has been increasingly contested by the Israeli public. In response to petitions from members of victims’ families and victims’ organizations, the Supreme Court has established requirements for mandatory prior notice and disclosure of the names of prisoners whose release is being considered, as well as procedures for the public to object to prisoner releases. The Court, however, declined to review the merits of governmental decisions to release prisoners and refused to order the government to adopt any fixed rules for future negotiations. (Nov. 2014)
Laws Prohibiting Investments in Controversial Weapons
This report describes the laws of eight European countries that prohibit investment in certain controversial weapons. Controversial weapons include those of mass destruction and those that fail to discriminate between civilians or combatants or cause disproportionate harm. Most of the surveyed countries prohibit both public and private investment in prohibited weapons, but Ireland’s legislation only covers investment by public entities. (Nov. 2016)
Legal Provisions on Fighting Extremism
This report analyzes anti-extremist legislation and other legal provisions on fighting extremism in China, Pakistan, Russia, and Tajikistan. The definition of “extremism” is examined, as well as the purpose and procedural aspects of the legislation. (Nov. 2015)
Treatment of Foreign Fighters in Selected Jurisdictions
This report contains information on provisions in place or under consideration by the United Nations (UN), the European Union, and 73 countries on the treatment of individuals
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Last Updated: 02/28/2018
- Healthcare, Safety, and Bioethics
- Immigration, Nationality, and Citizenship
- Indigenous and Cultural Property
- Intellectual Property
- Legal History, Traditions, and System
- Marriage, Divorce, and Estates
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- Plants, Animals, and the Environment
Joshua runs a shop selling French wine. He has had a delivery of rare wines and so decides to place an advert in Monday's edition of the ‘Wine Lovers’ Digest’, stating that he has 10 bottles of Chateau Rouge 1978 for £156 a bottle.
On Tuesday, Mary sees the advert and immediately telephones Joshua to inform him that she wishes to purchase all 10 bottles for the price stated. As Mary cannot get through to Joshua, she leaves a message on his voicemail.
On Wednesday, Charles also sees the advert and immediately telephones Joshua. When Joshua answers, Charles states, 'I accept your offer, I will buy all 10 bottles of Chateau Rouge 1978 for the price stated in your advert.' Joshua replies, 'I have changed my mind – the price is now £205 a bottle.' Charles is furious and threatens legal action against Joshua.
On Thursday, Horace visits Joshua's store after seeing the advert. He states that he is willing to buy all 10 bottles and pay the price advertised. Joshua says, 'The price is now £250 a bottle.' Horace replies, 'I will pay £223 and that is all.' Joshua states, 'I am not sure.' Horace responds, 'Look, I will give you until next Friday to decide whether you are willing to sell me the wine for £223 a bottle.' Horace leaves his business card with Joshua.
On Saturday morning, Joshua decides to write to Horace and agrees to sell him the wine for £223 a bottle. He posts the letter but, due to a high-profile strike by postal workers, it never arrives.
On Sunday morning, Horace changes his mind and telephones Joshua to inform him that he no longer wishes to purchase the wine. He leaves a voicemail on Joshua's answerphone.
Advise Joshua, Mary, Charles and Horace as to whether they have entered into any binding contracts.
- This question concerns offer and acceptance. Students will need to analyse the facts in order to see if any valid contracts have been formed and, if so, whether any party will be in breach of their contractual obligations. There is no need to discuss the other requirements for a valid contract such as consideration, capacity and intention to create legal relations.
- Joshua’s placement of the advert in the ‘Wine Lovers’ Digest’, stating that he has 10 bottles of Chateau Rouge 1978 for £156 a bottle, will amount to an invitation to treat rather than an offer. As a general rule, adverts are treated as invitations to treat, see Partridge v Crittenden  1 WLR 1204 where it was held that the placement of an advert was an invitation to treat and did not amount to an offer. It is important to appreciate the differences between an offer and an invitation to treat. An offer can be accepted and will form a legally binding agreement, whereas an invitation to treat will not. An invitation to treat is merely an invitation to parties to make an offer themselves, which can then either be accepted or rejected by the maker of the invitation to treat. Whereas an offer is final and certain, and there is no further need for negotiation; an invitation to treat is seeking business and is inviting parties to negotiate with you.
- When Mary purports to accept his offer by leaving a message on his voicemail, she is in fact making an offer. This is because the offer is clear and precise and she intends for her statement to constitute an offer, which, if accepted by the offeree, would constitute a binding agreement. Joshua would be the offeree and so it would be up to him to accept or reject her offer. He does neither so there has been no agreement.
- Rather than accepting Joshua’s ‘offer’, Charles is in fact making an offer. The offer has been communicated to Joshua (R v Clarke  40 CLR 227). Joshua is free to change the price as the advert is only an invitation to treat. By stating that the wine is now £205 a bottle, Joshua is making a counter-offer which will kill off Charles’ original offer (Hyde v Wrench (1840) 49 ER 132). The counter-offer will be treated as an offer in its own right. The offeree cannot go back and accept the original offer, as this no longer exists.
- In order to have accepted Charles’ offer, Joshua’s acceptance would need to have agreed to the terms of the offer. This is known as the ‘mirror image rule’. The acceptance must be a clear and unequivocal mirror image of the terms of the offer. There cannot be differences between the terms offered and those accepted. This is because there cannot be a contract where the parties are both at odds as to what they have agreed. There is no agreement here and Charles cannot argue that there is a contract between him and Joshua.
- Horace has made an offer. Joshua makes a counter-offer to sell Horace the wine for £250 a bottle. Horace then makes a counter-offer to pay £223 a bottle and states that he is holding the offer open until next Friday.
- Joshua attempts to accept Horace’s offer on Saturday and his acceptance mirrors the terms of Horace’s offer. Acceptance, in order to be effective, must reach the offeror (Entores Ltd v Miles Far East Corp  2 QB 327). However, there are exceptions such as the postal rule, where acceptance will take place as soon as the offeree posts the letter (Adams v Lindsell (1818) 1 B & Ald 681). The question here is whether the acceptance actually took place when Joshua posted the letter, due to the fact that it was well known there was a postal strike. Therefore, was it reasonable to use the post in these circumstances? The parties have not restricted the method of communicating acceptance (Henthorn v Fraser  2 Ch 27).
- On Sunday, Horace attempts to revoke his offer. Revocation can take place any time until the offeree accepts the offer (Byrne & Co v Leon Van Tienhoven & Co (1879–80) LR 5 CPD 344). However, notice of the revocation must actually reach Joshua in order for it to be effective. The revocation has been left on Joshua’s voicemail, therefore when has it been received by Joshua? If we apply the case law surrounding the communication of acceptance it is noted in Korbetis v Transgrain Shipping BV  EWHC 1345 (QB), the offeree attempted to accept an offer by fax; however, there was a clerical error and it was never actually received. The court held that communication had not actually taken place and the offeree should have checked to see if their acceptance had been received. Arguably, the revocation should have been received on Monday morning as it would be the next working day. The key question would be what happened first: Joshua’s acceptance or Horace’s revocation of his offer.
Sonya works for Midland Enterprises Ltd, a company that makes components for the motor industry. Sonya is employed as a technician and she oversees production. Midland Enterprises Ltd have a large number of orders from customers which they need to meet otherwise they will be in breach of contract. Sonya is feeling the pressure of meeting the deadline and is annoyed that there is such a large volume of work. She approaches her line manager and asks for additional pay in lieu of the increase in orders. Her line manager points out that the work she is doing is only done during her contractual hours. However, Sonya indicates that unless she receives an extra £50 per day, she will have to be signed off with stress. Her line manager agrees to pay Sonya the extra money. Sonya works hard to meet the deadline and manages to do so. When she receives her pay packet she notices that she has not been paid the extra £50. She complains to her line manager who tells her that she will not be paid the extra money.
- Students are expected to apply the rules relating to the doctrine of consideration to the problem scenario. Consideration is defined in Currie v Misa (1875) LR 10 Ex 153 by Lush LJ as ‘a valuable consideration’ which may ‘consist either in some right, interest, profit or benefit accruing to the one party or some forbearance, detriment, loss or responsibility, given, suffered or undertaken by the other’.
- Students might refer briefly to principles relating to the doctrine of consideration, such as the principle that consideration must move from the promisee (Thomas v Thomas (1842) 2 QB 851). Applying this to the question, the consideration should move from Sonya, who is the promisee, since the promise to pay the money has been made by Midland Enterprises Ltd to Sonya.
- Consideration must be sufficient in the eyes of the law. This means that it must have some value in the eyes of the law. Students should cite White v Bluett (1853) 23 LJ Ex 36 on this point and apply this principle to the facts in the question. An extra £50 obviously has some value in the eyes of the law.
- While consideration must have some value, it need not be adequate. This means that the value of the consideration need not be of equivalent value to the value of the promise that it is given in exchange for. Students should cite the case of Chappell & Co Ltd v Nestle Co Ltd  AC 87 on this point and apply this principle to the facts in this case. It is irrelevant whether any extra work that Sonya does in exchange for this £50 is of equivalent value.
- The problem requires students to apply the law relating to existing contractual duties. Performance of an existing contractual duty does not amount to sufficient consideration for a promise to pay extra (Stilk v Myrick (1809) 2 Campbell 317), unless the promisee agrees to exceed that duty (Hartley v Ponsonby (1857) 7 Ellis and Blackburn 872). Sonya agrees to perform an existing duty for the extra money. This promise on its own is not sufficient consideration.
- However, where the promisor receives a practical benefit and/or obviates a disbenefit in exchange for performance, see Williams v Roffey Bros  2 WLR 1153. In this question, Midland Enterprises Ltd obtains practical benefit in being able to meet the deadline, avoiding cancelling/postponing any order and thus avoiding breaching the company’s contracts with the customers.
- Since the question states that Sonya has informed her line manager that she will be signed off with stress unless she receives the extra money, students should consider whether the defence of economic duress might apply here (look at DSND Subsea Ltd v Petroleum Geo Services ASA  BLR 530 on economic duress in Chapter 7).
Ferdinand decides that he is going to purchase a new car and visits Lucy’s Automobiles Ltd (LAL). He only has £15,000 to spend. He sees a shiny red sports car that he likes and is upset to see that it costs £18,000. He approaches Lucy, the manager of LAL, and asks her if she would sell him the sports car for £15,000. Lucy informs him that she will be able to reduce the price to £15,000 as long as Ferdinand agrees to the fact that LAL will not be liable in the event that the car is defective. Ferdinand agrees and is given a copy of the sales contract which contains all the terms to the contract. Ferdinand has forgotten his glasses and so cannot read the terms, but he still goes ahead and signs the contract.
Two weeks after taking delivery of the sports car, Ferdinand notices that the steering is defective, which makes the sports car difficult to drive. He takes the car back to LAL and demands a full refund. Lucy refuses and informs Ferdinand that by having agreed to the exclusion clause, he no longer has a right to claim that there has been a breach of contract. Ferdinand protests and states that he never properly read the contract so is not bound by it. After a heated exchange, he leaves LAL’s premises and is now seeking legal advice.
Please advise Ferdinand as to his rights against LAL.
- This question examines implied terms, express terms and exclusion clauses. The parties have agreed express terms such as the price of the car and the exclusion clause in the contract.
- However, in addition to any express terms, there are terms implied in this contract for the sale of goods by the Sale of Goods Act 1979. The key implied term would be s 14(2) which states that the goods supplied must be of satisfactory quality. This section only applies where the seller is selling in the course of a business and a one-off sale is sufficient for these purposes (Stevenson v Rogers  QB 1028). This does not mean the goods have to be acceptable, or what the buyer herself considers to be satisfactory; rather, the test is based on what the reasonable person will regard as satisfactory.
- Under s 14(2A), ‘goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances’. The court also takes into account the factors listed under s 14(2B), which include fitness for the common purpose for which goods are supplied, appearance and finish, freedom from minor defects, safety and durability. The implied term under s 14(2) does not apply to defects that the buyer has made known to the seller before contracting, and when the buyer took the opportunity to examine the goods and the examination ought to reveal the defect (s 14(2C)).
- Also relevant is s 14(3), which states that the goods must be fit for the particular purpose that has been made known to the seller by the buyer. This section also only applies where the seller is selling in the course of a business. Crucially, the buyer must have relied upon the seller’s skill and judgment and it must have been reasonable for him to do so.
- The fact that the car’s steering is defective, making it difficult to drive, might amount to a breach of s 14(2) and (3). A reasonable person may well agree that the car is of unsatisfactory quality, given the extent of the defect, the age and price of the car. The car has the implied purpose of being roadworthy and suitable for driving on the road.
- The seller has attempted to exclude liability for any defects. To be effective, an exclusion clause needs to be incorporated into the contract, to cover the breach of contract, and to be valid under the Unfair Contract Terms Act (UCTA) 1977 and the Unfair Terms in Consumer Contract Regulations 1999.
- The exclusion clause has been incorporated by signature. The fact that the buyer did not read the contract is irrelevant (see L'Estrange v F Graucob Ltd  2 KB 394 and Saunders v Anglia Building Society  AC 1004). The exclusion clause, if it is deemed an onerous term, has been brought to the buyer’s attention (see the effect of an onerous term in a contract in Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd  QB 433).
- The next question would be to ask whether the exclusion clause covers the breach. According to Anson’s Law of Contract, ‘the words of the exemption clause must exactly cover the liability which it is sought to exclude’ (Beatson, Burrows & Cartwright, 29th edn, OUP, p178). The strict approach taken by the courts is demonstrated in Andrew Bros v Singer & Co Ltd  1 KB 17. We would need more information to ascertain this.
- We will look at whether the exclusion clause is valid under UCTA 1977. Under UCTA 1977, you cannot exclude the implied terms in a contract against a consumer (see s 6(2)). Here, looking at s 12 UCTA 1977, the buyer falls within the definition of a consumer. Therefore, it is not possible to exclude liability for any possible breaches of s 14(2)–(3) of the Sale of Goods Act (SGA) 1979.
- Section 14(2) and (3) SGA 1979 provide conditions. The buyer can treat any breach of a condition as giving him the right to repudiate the contract (reject the goods) and demand the return of his purchase price and claim any additional damages.
Define misrepresentation and critically evaluate the merits of an action for misrepresentation under the Misrepresentation Act 1967.
- A mispresentation is an unambiguous false representation of fact or law made by X to another party (Y) and, if that statement induces Y to enter into a contract with X, causing loss to X, Y may have an action in misrepresentation.
- It is important to note the effect of an actionable misrepresentation: it will make the contract voidable and not void. Where an action for misrepresentation is successful, the innocent party may claim damages and/or rescind the contract (depending upon the category of misrepresentation).
- Not all false statements made during contractual negotiations will lead to a successful action for misrepresentation. Silence is not grounds for an action in misrepresentation (Keates v The Earl of Cadogan (1851) 10 CB 591) because, according to the principle of freedom of contract, each contracting party is responsible for protecting his own interests. A false statement of fact may be made by conduct, and thus conduct may be an actionable misrepresentation if it induces the other party to enter into the contract (Spice Girls Ltd v Aprilia World Service BV  EWCA Civ 15). However, a mere advertising puff or sales talk is not actionable (Dimmock v Hallett (1866–67) LR 2 Ch App 21).
- As a general rule, a false statement of opinion made during contractual negotiations is not an actionable misrepresentation (Bisset v Wilkinson  AC 177). However, a statement of opinion in some circumstances can amount to an actionable misrepresentation (Esso Petroleum Co Ltd v Mardon  QB 801).
- Likewise, statements of future intention are, as a general rule, not actionable (Wales v Wadham  1 WLR 199). However, where there is a change of circumstances relating to a representation that has already been made and which was true when it was made, but later become false. If there is such a change of circumstances, then there is a duty on the representor to correct the representation previously made: With v O’Flanagan  Ch 575.
- The statement needed to induce the other party into entering into the contract. According to Edgington v Fitzmaurice (1885) LR 29 Ch D 459, the statement need not be the sole inducement which led the party to enter into the contract. However, it must certainly be an inducement: JEB Fasteners Ltd v Marks Bloom & Co  1 All ER 583.
- Misrepresentation requires that the false statement of fact or law be material, but it is not entirely clear whether this is a separate requirement to the requirement of inducement (see Museprime Properties Ltd v Adhill Properties Ltd (1991) 61 P & CR 111).
- Establishing tort of deceit (fraudulent misrepresentation). The claimant has the burden of proof and must show, on a balance of probabilities, that the defendant made the fraudulent statement: (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. The damages for the tort of deceit: the claimant may be awarded the tortious measure of damages in respect of the losses that he suffered. This measure of damages is designed to put the claimant back in the position he was before he entered into the contract. The remedy of recession is also available.
- The Misrepresentation Act 1967 makes it easier for the claimant to recover damages for negligent misrepresentation than the tort of deceit. Once it is established by the claimant that there has been a misrepresentation, it is for the defendant to prove that they have not been negligent (see s 2(1) and Howard Marine & Dredging Co Ltd v A Ogden & Sons (Excavations) Ltd  QB 574). Additionally, if a defendant is liable for negligent misrepresentation under s 2(1), Misrepresentation Act 1967, then the remedies available to the claimant are the same as those available for fraudulent misrepresentation, namely rescission and damages. An action under s 2(1), Misrepresentation Act 1967 is also preferable for a claimant because the measure of damages is the same generous award that is available for fraudulent misrepresentation at common law, namely the tortious measure of damages recoverable in the tort of deceit, which covers all losses that flow directly from the misrepresentation, whether foreseeable or not. Thus, the defendant who is liable for negligent misrepresentation is liable to the same extent as if he had fraudulently misrepresented the fact; this is known as the ‘fiction of fraud’ (see Royscot Trust Ltd v Rogerson  2 QB 297).
- Recovering under the Misrepresentation Act 1967 is preferable to recovering under the tort of negligent misstatement. This is because the claimant must establish that there is a special relationship between him and the defendant. The measure of damages available for negligent misstatement at common law is the tortious measure, but it is less generous than the measure of damages available for fraudulent misrepresentation in that a claimant may only recover for losses that are reasonably foreseeable.
Critically evaluate the extent to which the law relating to mistake is coherent, logical and consistent.
- This question requires students to critically evaluate the case law relating to mistake as to identity. Students should focus specifically upon identity. A basic answer will provide a narrative of the relevant case law. A good answer will provide some critique and address the question. An excellent answer will also demonstrate evidence of wider reading.
- Students will recognise that this area deals with situations involving one party contracting with a rogue and should acknowledge that key cases have attempted to decide which of two innocent parties should bear the consequences of the fraud. The seller will argue he made a mistake as to the rogue’s identity, which prevents the formation of the contract, so the contract is void and the goods should be returned to seller. But then the third-party buyer loses out. On the other hand, if the contract was formed between seller and rogue, then the third party can keep the goods, but the seller loses out. The case law has been complex, introducing artificial distinctions.
- The courts have introduced a distinction between face-to-face negotiations and negotiations at a distance. In face-to-face negotiations, there is a presumption that the original seller was intending to deal with the person who was physically present in the shop, irrespective of the name he was giving himself. In negotiations at a distance, the opposite applies – so the original seller intended to be dealing with the person identified on the agreement (i.e., the assumed name).
- Students should give an example of face-to-face negotiations – Phillips v Brooks Ltd  2 KB 243, in which it was held that it could not be argued that mistake as to identity prevented formation of the contract. The seller had always been intending to deal with the person physically present in the shop, irrespective of the name given by the rogue. The seller intended to deal with the rogue. Thus, the rogue gave his agreement to the contract – no mistake as to identity and the contract was formed.
- However, students should acknowledge that where the seller makes checks, this could displace the presumption that the seller intends to deal with the rogue. Thus, the contract will be void for mistake – see Ingram v Little  1 QB 31.
- Phillips v Brooks Ltd was also applied in Lewis v Averay  1 QB 198 in which it was held that the seller had been intending to deal with the person physically present in front of him (the rogue). The contract was formed. No mistake as to identity.
- Students should also consider negotiations made at a distance. Where a contract is negotiated in writing at a distance, and parties do not see each other at all, the court reaches the opposite conclusion. The original seller could only mean to be dealing with the name on paper (the assumed name). There is a mistake because the assumed name did not give their agreement, so the contract would be void for mistake as to identity.
- The case of Cundy v Lindsay (1878) 3 App Cas 459 should be cited here. Lindsay was meaning to deal with the name identified on paper (Blenkiron). Thus, there was a mistake as to identity because the real Blenkiron never gave their agreement or ordered these goods. This mistake as to identity prevented the formation of the contract, so the contract is void. Lindsay could recover the goods.
- Students should offer some analysis of the rationale for this decision. No contract could be said to have been formed between the seller and the rogue because the seller knew nothing of the rogue and never intended to deal with him.
- Thus, the decisions of the courts have created a distinction between cases of mistake as to identity involving face-to-face negotiations and those involving negotiations at a distance. This distinction has been subject to academic criticism because it is overly complicated and highly artificial.
- This confusion was compounded by the decision of the House of Lords in Shogun Finance v Hudson  1 AC 919 in which the House affirmed the distinction between face-to-face negotiations and negotiations at a distance by a 3:2 majority. In this case there were no face-to-face dealings between Shogun Finance and the rogue. The negotiations were treated as negotiations at a distance so Shogun could only intend to deal with the assumed name, Mr Patel, and the contract was void.
- The decision in Shogun was heavily criticised by academics because it failed to clarify the confusion in this area. The distinction between face-to-face negotiations and negotiations at a distance is artificial and unnecessarily complicated. The minority in the House questioned which set of cases would be applied to negotiations by telephone or fax.
- Shogun would be able to claim that the mistake as to identity prevented formation of the contract. Students might consider whether the decision in this case is satisfactory. It might be thought to be unsatisfactory since, although it protects the original buyer, it creates a problem for the third-party buyer, despite the fact that both are innocent parties. In fact, if anything, the seller should bear the risk because he was willing to deal with the rogue and hand over the property without payment – he accepted this risk. By contrast, the third-party buyer is more innocent since he knows nothing of the origin of the goods.
Discuss the development of the law of economic duress.
- Duress can be defined as the coercion of a contracting party’s consent, which renders the contract voidable. There can be physical duress where the coercion is unlawful, or economic duress where it is illegitimate pressure. Duress is a vitiating factor that will make a contract voidable. Whether the contract is set aside will be at the discretion of the court. A party having entered into a contract may, at a later date, seek to argue that the contract should not be valid as their free will has been overcome by unlawful pressure.
- Traditionally, only physical duress was accepted as a vitiating factor. There needed to be unlawful pressure that constituted a physical threat towards the claimant (Barton v Armstrong  AC 104).
- The ability to set aside a contract for economic duress was accepted in Occidental Worldwide Investment Corp v Skibs A/S Avanti (The Siboen and The Sibotre)  1 Lloyd’s Rep 293. In Pao On v Lau Yiu Long  AC 614, the Privy Council accepted obiter that economic duress could be relied upon to set aside a contract. Lord Scarman stated that in order for economic duress to ‘render a contract voidable…it must amount to a coercion of will, which vitiates consent. It must be shown that the payment made or the contract entered into was not a voluntary act’. Crucially, His Lordship stated that there needs to be a coercion of will that prevents the claimant from having truly consented to entering into the contract.
- In Universe Tankships Inc of Monrovia v International Transport Workers Federation (The Universe Sentinel)  1 AC 366 it was held that there needed to be illegitimate pressure which overcomes the claimant’s consent at the time he enters into the contract. It is not a question of the claimant not understanding the terms of the contract. The commercial pressure may coerce the weaker contracting party but it may be regarded as legitimate. However, on the facts, the economic pressure concerned industrial relations and was considered an illegitimate commercial pressure.
- The key question is what will amount to illegitimate commercial pressure (see Atlas Express Ltd v Kafco (Importers and Distributors) Ltd  QB 833).
- In DSND Subsea Ltd v Petroleum Geo Services ASA  BLR 530, Dyson J reiterated the requirements for illegitimate pressure. He stated that there were three requirements to illegitimate pressure: the pressure has to result in the victim having no other practical choice, the pressure has to be illegitimate, and the pressure must be a significant cause in the victim entering into the contract.
Critically evaluate the way in which the rules relating to the doctrine of privity of contract have developed in English law.
- According to the common law doctrine of privity of contract, only parties to a contract can enforce the contract in a court of law. The common law doctrine of privity of contract prevents third parties from being able to enforce terms in the contract (i.e., to sue) and from incurring liability.
- Consider the key cases of Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd  AC 847, Tweddle v Atkinson (1861) 1 Best and Smith 393 and Beswick v Beswick  AC 58 to see the effect of privity of contract. Discuss the problems that this rule causes for third parties.
- It should be noted that privity of contract is only a general rule and that there are a number of common law and statutory exceptions.
- At common law some of the most important exceptions are the law of tort (see Donoghuev Stevenson  AC 562), collateral contracts (Shanklin Pier Ltd v Detel Products Ltd  2 KB 854) and the limited ability of a third party to rely on an exclusion clause. Discuss why these exceptions are important and how they operate.
- The most important statutory exception is the Contracts (Rights of Third Parties) Act 1999. Whilst the 1999 Act does not permit a third party to be treated as a party to a contract (s 7(4)), the third party can enforce a contract. The 1999 Act will allow a benefit but not a detriment to be conferred on the third party.
- A benefit can be conferred on a third party in a number of ways. Section 1(2) outlines the circumstances in which the contract will purport to confer a benefit on the third party. These are that the ‘third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into’.
- Reasons for the 1999 Act were outlined by the Law Commission in its report: Privity of Contract: Contracts for the Benefit of Third Parties (Law Com No 242, 1996). For academic commentary of the problems with the general rule of privity of contract and the emphasis of reform, see MacMillan, C, ‘A Birthday Present for Lord Denning: The Contracts (Rights of Third Parties) Act 1999’  63 The Modern Law Review 721.
When organising her forthcoming wedding, Ingrid hires a room at a country mansion to host the reception at a cost of £7,500. She pays a deposit of £750 upon booking, with the balance due on the day before the wedding reception. Ingrid hires a DJ for the evening and agrees to pay him on the night. She also hires caterers to prepare a wedding feast and transport it to the reception. She pays the caterers a deposit of £500 in advance, with the balance of £4,500 payable on the day before the wedding.
One week before the wedding, the DJ rings Ingrid to tell her that his house has been burgled and all of his very expensive music equipment, which he needs to perform, has been stolen. He tells her that he will be unable to perform at the wedding. Five days before the wedding, the caterers are visited by a Food Safety Officer who finds that their kitchens do not meet appropriate food hygiene requirements. The Food Safety Officer serves a Hygiene Emergency Prohibition Notice on the caterers which states that they are prohibited from using their own kitchens to prepare food for commercial purposes. Two days before the wedding, there is a fire at the country mansion which started in the kitchens and spread throughout the house, badly damaging half the house. The room used for wedding receptions is badly damaged and cannot be used.
Advise Ingrid as to her rights and remedies in respect of her contracts with the DJ, the caterers and the country mansion.
- Students should consider whether the contract between Ingrid and the DJ is frustrated, whether the contract between Ingrid and the caterers is frustrated, and whether the contract between Ingrid and the country mansion is frustrated.
- Students should explain that the doctrine of frustration is a narrowly applied doctrine and provide a definition of frustration. A contract is frustrated where an event renders performance of the obligations under the contract impossible, illegal or radically different: Davis Contractors Ltd v Fareham UDC  AC 696. Frustration applies where an unforeseen change of circumstance occurs after the contract is formed and makes it impossible to perform. If the contract is frustrated, then it has the effect of discharging the parties from performing their obligations under the contract.
- Dealing with the contract with the DJ first. Where performance of a contract is rendered impossible or radically different due to the disappearance of the subject matter, the contract will be frustrated: Taylor v Caldwell (1863) 3 BNS 826. However, where performance can in fact be carried out by hiring other equipment or by another person, then there is likely to be no frustration.
- Moving on to the contract with the caterers, supervening illegality would appear to apply here to frustrate the contract. The caterers are unable to use their own kitchens to prepare the food as a result of the prohibition order: Denny, Mott & Dickson Ltd v James B Fraser & Co Ltd  AC 265. Students might point out that the caterers would be unable to use the kitchens at the country house itself due to the fire – thus, impossibility might also be relevant here: Taylor v Caldwell.
- Students might also consider here whether the frustrating event is self-induced. As a catering company, they must be aware of the standards of hygiene to be met, and by falling below those standards, are they unable to rely on the doctrine of frustration? Maritime National Fish Ltd v Ocean Trawlers Ltd  AC 524.
- Finally, students should deal with the main contract with the country house itself. Is the contract for the venue for the party impossible to perform? The room was booked for the event and this is now damaged by fire, so students should discuss the applicability of impossibility of performance due to the destruction of the subject matter, which frustrates the contract: Taylor v Caldwell. Students should consider any alternative rooms. Students will need to consider whether the room itself is the subject matter of the contract. If it is not, and if the party could possibly be held elsewhere in the mansion, then the contract is not frustrated.
- There appears to be no force majeure clause in any of the contracts allocating the risk to either side. There is no evidence that any of the events were foreseeable.
- Consideration should be given to the effects of frustration. At common law the loss lay where it fell – this means that money already paid could not be recovered and money payable remained payable unless there was a total failure of consideration: Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd  AC 32.
- Students should apply the Law Reform (Frustrated Contracts) Act 1943. Under s 1(2), money paid prior to the frustrating event is recoverable. So, the £500 deposit paid to the caterers is recoverable. Under s 1(2), any money that is payable ceases to be payable. Thus, Ingrid will not have to pay the remaining balance to the caterers. If the contract with the DJ is also frustrated, she will not have to pay the money owed to him under the contract. The contract with the country house is not likely to be frustrated, but if it is, Ingrid will recover her deposit paid and will not have to pay the balance due.
- The proviso under s 1(2) is that any expenses already incurred can be offset against the money already paid or payable. So, if the country house, the caterers or the DJ have incurred any expenses already, they will be able to recover that money so far as the court thinks it is just to do so: Gamerco SA v ICM/Fair Warning (Agency) Ltd  1 WLR 1226.
Discuss the circumstances in which a claimant is unable to recover his expectation interest for breach of contract.
- The most common remedy for breach of contract is common law damages. The aim of an award of damages is to compensate the claimant for the loss that they have suffered and the normal measure of damages in contract law seeks to put the claimant in the position that they would have been in had the contract been performed. Thus, damages in contract law look forward to the position that the claimant would have been in after performance of the obligations under the contract and protect the claimant’s expectation interest.
- Students should contrast this measure of damages with the measure of damages awarded in the law of tort.
- However, there are restrictions on the claimant recovering their expectation interest. The expectation interest cannot be recovered where the claimant’s losses are unquantifiable. So, where a claimant is unable to calculate exactly how much money he would have had if the contract had been performed (expectation losses), a different measure of damages must be adopted (reliance losses).
- Students should consider the cases of Anglia Television Ltd v Reed  1 QB 60 and McRae v Commonwealth Disposal Commission (1951) 84 CLR 377 and discuss why the claimants in these cases were unable to claim their expectation interest.
- A claimant will also be unable to recover his expectation losses where the court considers those to be disproportionate to the breach of contract, see Ruxley Electronics and Construction Ltd v Forsyth  AC 344. In Ruxley the cost of cure was held to be disproportionate. The claimants contracted to build a swimming pool that ran to a depth of 7 feet 6 inches in the diving area. However, after construction, the pool was only 6 foot deep in the diving area. To ensure that the defendant was placed in the position that he expected to be in had the contract been performed properly (to calculate his expectation losses), the cost of fixing the problem by rebuilding the pool so that the diving area reached the depth contracted for (the ‘cost of cure’) was calculated at £21,560. However, the House of Lords was unwilling to allow the defendant to recover such an excessive and disproportionate sum of money in light of the fact that the defendant had been supplied with a pool that was suitable for domestic use. Consequently, the House held that the defendant had only really suffered disappointment and awarded him the sum of £2,500 for loss of amenity.